Articles Posted in Medical Malpractice

Plaintiff filed suit against Thoratec, manufacturer of the Left Ventricular Assist Device (LVAD) implanted in her husband, and subsequently filed suit against the Government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., based on medical malpractice committed by a heart surgeon and a nurse. The Government appealed the district court's order denying its motion for judgment on partial findings, and its amended judgment. Plaintiff appealed the district court's damages award. The court concluded that the district court did not err as a matter of law when it applied Virginia's common knowledge exception and held that plaintiff had proved her medical malpractice claim without offering expert testimony; because plaintiff failed to present the survivorship argument issue in her post-trial motion, the court may not consider it on appeal; and the district court's award was not clearly erroneous or contrary to right reason. Accordingly, the court affirmed the judgment. View "Bush v. Thoratec Corp." on Justia Law

Ronald Hines was a Texas-licensed veterinarian who practiced since the mid-1960s. He worked mainly in traditional veterinary practices until he retired in 2002. After his retirement, he founded a website and began to post articles about pet health and care. These general writings soon turned to more targeted guidance and, as he acknowledged in his complaint, he began “to provide veterinary advice to specific pet owners about their pets.” This advice was given via email and telephone calls, and Hines “never physically examine[d] the animals that are the subject of his advice,” though he did review veterinary records provided by the animal owners. Texas required veterinarians to conduct a physical examination of an animal or its premises before they can practice veterinary medicine with respect to that animal. In 2012, the Texas Board of Veterinary Medical Examiners informed Hines that by providing veterinary advice without a physical examination, he had violated Texas law. Hines eventually agreed to: abide by the relevant state laws, including the physical examination requirement, one year of probation; a stayed suspension of his license; a $500 fine; and to retake the jurisprudence portion of the veterinary licensing exam. Hines thereafter filed suit in federal court, seeking declaratory and injunctive relief. He argued that the physical examination requirement violates his First Amendment right to free speech as well as his rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Board moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court granted the Board’s motion in part and denied it in part. With respect to the equal protection claim, the court concluded that because the law did not discriminate on the basis of any suspect classification, the count was evaluated pursuant to rational basis review, and held that the physical examination requirement passed that deferential standard. The court dismissed Hines’s substantive due process claim for similar reasons. The district court denied the motion to dismiss the First Amendment claims. It recognized that states have broad power to regulate professionals, but determined that because the physical examination requirement “regulate[s] professional speech itself,” it is subject to the First Amendment. Relying on federal Supreme Court precedent, the district court held that Hines had stated a plausible claim that the Board had infringed his First Amendment rights. The Board moved to certify for interlocutory review the district court’s order. The issue this case presented for the Fifth Circuit's review thus centered on whether Hines' First or Fourteenth Amendment rights were violated. The Court concluded it offends neither, reversing the district court’s denial of the defendants’ motion to dismiss the plaintiff’s First Amendment counts and affirming the district court’s granting of the defendants’ motion to dismiss the plaintiff’s Fourteenth Amendment counts. View "Hines v. Alldredge" on Justia Law

The government appealed the district court's award of damages in a medical malpractice suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., contending that the district court should have applied the Texas periodic payment statutory scheme, Texas Civil Practice & Remedies Code 74.501-507. The court agreed, vacating the district court's judgment insofar as it failed to fashion a damages award similar to that contemplated by the Texas periodic payment statutory scheme and awarded post-judgment interest not in compliance with 31 U.S.C. 1304(b)(1)(A). The court remanded for further proceedings.View "Lee, Sr., et al. v. United States" on Justia Law

The Estate filed a malpractice suit against the deceased's health care providers under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., alleging in part that they failed to provide appropriate follow-up care after discovering a mass in the deceased's stomach. The court affirmed the district court's grant of summary judgment for the United States based on its finding that the Estate's expert report failed to establish the relevant standard of care or create a question of fact as to the remaining elements of a malpractice claim under Mississippi law. View "Estate of Ira J. Sanders v. United States" on Justia Law

In this Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b)(1), case arising out of medical malpractice that led to the death of Melissa Busch, the United States and Ms. Busch's family members, plaintiffs, cross-appealed the district court's judgment. The case arose out of repeated medical misdiagnoses that led to the untimely death of Ms. Busch from synovial foot cancer. The court held that the district court did not err in finding the Government fully liable for the damages award because the Government did not present adequate evidence of NE Methodist's liability. The district court also did not err in concluding that Ms. Busch was not comparatively negligent because the evidence showed that Ms. Busch acted as a reasonable prudent person of her same training and experience would have acted in similar circumstances. The court held, however, that the district court did err in its assessment of plaintiffs' claim for household services. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings.

Plaintiff appealed from the district court's dismissal of his state-law claims against Stryker under Rule 12(b)(6). Plaintiff alleged in his complaint that a hip replacement product manufactured by Stryker malfunctioned and caused him injury. The court affirmed the dismissal of plaintiff's strict liability, design defect, negligence, and Texas Deceptive Trade Practices Act (DTPA), Tex. Bus. Comm. Code 17.41 et seq., claims to the extent they were premised on a failure to warn or a marketing defect; affirmed as to plaintiff's breach of express warranty claims; and reversed and remanded the following: (1) plaintiff's strict liability and negligence claims, to the extent they were based on manufacturing defects that violated the FDA's Current Good Manufacturing Practices or are inconsistent with Stryker's manufacturing processes or procedures that were approved by the FDA; (2) his claim for breach of an implied warranty to the extent it relied on the failure to comply with the FDA's requirements; and (3) his DTPA claim, to the extent that it relied on a breach of an implied warranty.